Can a postmark establish a copyright?

If I mail my song or manuscript to myself and never open the envelope, will the postmark establish a copyright?

Legal Mystery Monday for August 3, 2015:

Bob wrote a screenplay. His friend told him he doesn’t need a lawyer and recommended that Bob mail the screenplay to himself and never open the envelope. Has Bob done enough to protect his screenplay?

The answer:

If I had a nickel for every time…what you thought I would tell you the answer without explaining? Read on.

The idea of mailing oneself a copy of his writing or sheet music to establish copyright is a very common myth. The truth is, a copyright is established the second the idea in your head is recorded or takes form, whether it be recorded on paper, canvas, video, or audio recording, etc. Thus, Bob established his copyright before he even talked to his friend; his friend who should be reported for the unauthorized practice of law.

But wait, there’s more.

That the copyright was established does not mean it is fully protected. Bob has taken a reasonable first step. He has created evidence that the screenplay was created, at least on or before the date of the postmark on the envelope – evidence that an attorney would not be able to look at without opening the envelope, destroying the genius evidence at the initial consult meeting. However, proving a date is not the only necessity to fully protecting a copyright. He must also take steps to register the copyright with the U.S. Copyright Office. As an aside, in this day and age, unless Bob deletes the metadata from the Word document or pdf, the date of creation and last edit are in the electronic file. So save your expensive stamps.

Though registration is not mandatory, registration gives Bob a lot of options for enforcing his copyright. With registration, which is quite simple, Bob can demand damages in the amount provided in the statute, and he can also bring a case in federal court to ask for those damages. Without timely U.S. Copyright registration, he’s left with very few options for enforcement and only damages that can be difficult to prove, especially for a relatively new artist. There are some very limited instances of bringing a state case for common law copyright infringement, but Bob’s particular situation is not one of those.

So let’s say Bob still believes his friend and thinks copyright registration is an unnecessary hassle that only benefits “the man” with a fee paid. What more can he do to protect his work? He could also register the screenplay with the Writers Guild of America. However, registration with the writers’ union does not convey copyright registration with the U.S. Copyright office. Much like an envelope postmark or metadata in a Word file, it only provides a date at which it was created on or before.

Meanwhile, even with copyright registration, Bob can do other things to protect his screenplay from being ripped off, primarily by restraining himself. Despite his excitement, Bob should avoid spraying a pdf out across the universe in hopes of snagging an agent or production company. Most agents and production companies do not accept unsolicited manuscripts anyway, for fear that a similar project on which they are already working may be perceived as an infringement on a screenplay they received. If Bob has established himself as an emerging writer, he could send a query letter to those folks and hope one of them asks to read his amazing screenplay. In doing so, Bob would be wise to have agent sign a non-disclosure agreement before sending the file. The exception to this rule may be entering reputable writing contests – REPUTABLE.

It can be difficult to police a copyright, but it is totally up to the artist to watch for infringement. Keep in mind that the idea/concept is not what is protected. It is the iteration of that concept or idea that is protected. So Bob shouldn’t think he won the statutory damages lottery when his screenplay (that he timely registered with the U.S. Copyright office) about a woman who falls in love with a man that her father hates is written as a novel, using completely different characters and settings and plot progressions.

And that’s a small piece of the copyright puzzle. A very small piece. The form may be simple, but then what? Like Bob, you should consult a licensed attorney because every situation is unique.

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Joshua Aaron Jones is a Pensacola Family Law Attorney and Florida Education Lawyer with offices in Pensacola, Florida. He provides legal services and consultations to families, small businesses, parents, and students in Pensacola, Gulf Breeze, Escambia County and Santa Rosa County.